Article by Samantha Dix. Edited by Victoria Ryves. Additional Research by Ellie Veryard.
The study of infanticide in the Early Modern Period for the most part revolves around an interesting legal statute passed in 1624. The statute was primarily focused upon the crime of infanticide, more specifically, the deaths of new born babies. It also made it a capital criminal offence for unmarried women to conceal the birth of a child. It has been argued that the statute’s main focus was to discourage immorality and the birth of bastard children. James Sharpe has argued that convictions for infanticide during the period 1580 to 1700 resulted in more executions than the witchcraft craze of the same period. In Essex for example, twenty women were executed on suspicion of witchcraft, but thirty one were executed for infanticide!
What makes this statue interesting is the emphasis placed on the status of the accused. The law concerning the general crime of infanticide took two forms during the period 1660- 1800. If a married woman (or less commonly man) was prosecuted for the killing of a new born child the charge would remain the common law offence of murder unless it could be proved that the child was born healthy and that the accused had wilfully killed it. The mother would have been considered innocent until proven otherwise. However, an unmarried woman found with a dead child would be presumed to have killed it unless there was evidence to the contrary. The unmarried mother needed to prove by the testimony of at least one witness that the child was born dead. If the woman was successful in proving a still birth the crime was reduced to concealing a birth, for which the punishment was still death! This indicates that the statute was aimed to prevent immoral behaviour as much as to punish the killing of newborns.
Interestingly, John Beattie argues that the most common perpetrators of infanticide were in fact respectable women. He argues that prostitutes tended to keep and look after their illegitimate children as their reputation was already tarnished so they did not need to cover up their impropriety. However, those whose reputation and honour were essential were more likely to go to extreme lengths to dispose of the evidence of their indiscretions. The shame was most likely to affect those living in as servants as having illegitimate children would more than likely lead to dismissal. There would be no possible employment future apart from the most menial of jobs, as the stigma and lack of references would have made the women unemployable in well-to-do households. The case of Christian Russel highlights this point, as she was a servant when accused, and eventually found guilty:
‘Christian Russel , of the Parish of St. Pauls Covent Garden , was indicted for the Murther (sic) of her Male Infant Bastard, on the 19th of December last, by throwing the same into a House of Office . The first Evidence was her Mistress, who deposed, That the Prisoner was a Servant in the House, and in the Morning, it being the Fast-day, she came down and sat by the Kitchen-fire, and told her Mistress she was not well, upon which, she bid her go up Stairs, which she did; about 2 a Clock she came to see her again, and then she said that she was something better, upon which, she askt her to hire a Chare-woman for that Day, (which she did) and said, that she did hope to be better the next Day to do her work her self; a while after she did mistrust that she had had a Child, and askt her if she was married, and she answered No, then she said, What have you done with the Child; and she confest that it was in the House of Office.’ Trial of Christian Russel, Old Bailey Proceedings Online (www.oldbaileyonline.org, version 6.0, 04 March 2012), January 1702.
The large proportion of servants being tried for infanticide can be explained to an extent: the servants would have had to deliver in appalling conditions, and in secret. The babies, whether still-born or alive, would not have been seen by a witness and therefore, under the 1624 statute, a prosecution was likely as the servant would not have been able to prove their innocence. The statute itself, however, was seen by many as perfectly just as most were of the opinion that any ‘honest and innocent woman’ would desire aid in delivering a child. Up until the early eighteenth century women convicted under the 1624 statute were hanged.
Although there was the emphasis that unmarried women were thought to be guilty unless proven otherwise there were some medical tests which were done to attempt to determine whether or not a baby had been still-born. This was known as the lung test: a surgeon would take out the lungs of the dead child to determine whether or not it had ever breathed. The lungs were placed in water and if they sank it was concluded that the baby had never breathed. If they floated, however, it was considered that the baby had breathed and therefore was not still-born. This test was challenged in the early 1770s. Medical evidence such as this began to have less effect upon cases in the eighteenth century, unless it was used in defence of the accused. This shift in the use of medical evidence reflects the changing attitudes towards the 1624 statute during the eighteenth century.
Development of the Statute
By the mid 1720s there is evidence of a softer approach to unmarried women and infanticide. Throughout the decade there became a tradition of acquittal in the courts relating to unmarried women and infanticide. There was also more consideration of a woman’s intentions. For example, if she had confessed her predicament and sought aid in delivery there would have been no case to answer. Also, if she had collected linen it was seen as evidence that she intended to care for the baby, not kill it. The reliance upon witnesses was, therefore, decreased in the court trials improving the likelihood of a favourable verdict. Another shift concerning the 1624 statute is shown in several cases in which it was decided the accused was not guilty of killing the baby but was still plainly guilty of concealing the birth. Although this remained an offence there are several cases where the women were acquitted despite this obvious guilt.
Beattie argues that in Surrey, by the second half of the eighteenth century, the 1624 statute was being completely ignored. It is apparent that by this time the attitudes toward unmarried mothers had shifted, there was no longer the immediate assumption of guilt and the judge and jury required evidence that the baby had been born alive to convict. The establishment of charities to help unmarried mothers through pregnancy and labour signifies this change in attitude. Furthermore, hospitals were founded to look after abandoned babies providing an alternative for women in desperate situations.
The statue was eventually repealed in 1803.
- There were 196 trials at the Old Bailey in London between 1690 and 1799 for infanticide. 62 of these returned guilty verdicts. Over 90% of those accused were women.
- Wider attitudes towards women began to shift in the eighteenth century, and by the end of the period most women were no longer viewed as lascivious temptresses but innocent victims seduced by men. This shift affected the treatment of women in many ways but specifically in the area of crime, where women committed a felony, such an infanticide, with a man, they were often portrayed as being falsely persuaded into committing the act.
- Likewise, although women who killed their children were still censured and punished, these women were often cast into the roles of victims, and the act of infanticide was interpreted in this light.